Revising KORA: Copying audio and video records

video recordingAs discussed in this space, audio and video recordings in possession of government agencies, such as law enforcement, are public records, and available for inspection under the Kansas Open Records Act (KORA). However, under KORA, agencies “shall not be required to provide copies of radio or recording tapes or discs, video tapes or films, pictures, slides, graphics, illustrations or similar audio or visual items or devices.”  K.S.A. 45-219(a).

This provision needs to be revised so that the public can obtain copies of agencies’ records that exist in the form of audio, video and the like. Under KORA, records requesters already are entitled to receive copies of records that consist of text and data. Preventing requesters from receiving copies of records just because they exist in such forms as audio and video does not make sense. Records requesters who report news for radio and television stations are particularly disadvantaged by KORA’s anti-copying provision, because they need audio and video to inform the public.

KORA presumably does not require agencies to make copies of audio, video and other such records because of the state of technology when it was enacted in 1984.  Back then, agencies, especially small ones at the local level, likely lacked the means to copy audio and video recordings in their possession. Even if they had the means to copy the recordings, they may not have had the ability to redact any non-public information from the copies.

Despite technological advancements since 1984, which facilitate copying and sharing of recordings, KORA’s anti-copying provision remains in effect. KORA should be amended to reflect these advancements. The amendment should require agencies to make copies of audio and video recordings if they have the means to do so. A requirement of this kind would be protective of agencies with limited resources, for whom making copies is overly burdensome, or perhaps impossible. With those issues in mind, the Legislature should consider revising K.S.A. 45-219(a) as follows:

“Any person may make abstracts or obtain copies of any public record to which such person has access under this act. If copies are requested, the public agency may require a written request and advance payment of the prescribed fee. A public agency shall not be required to provide copies of radio or recording tapes or discs, video tapes or films, pictures, slides, graphics, illustrations or similar audio or visual items or devices materials if the public agency possesses, or reasonably can arrange for, the technological means to produce such copies. or , unless The public agency shall provide copies of such items or devices materials if they were shown or played to a public meeting of the governing body thereof, but the public agency shall not be required to provide such items or devices materials which are copyrighted by a person other than the public agency.”

It should be noted that states such as Oklahoma and Texas do not distinguish between making copies of audio/video recordings and other types of records, and simply requires that agencies make copies of such items in the manner set forth in those states’ open records laws. Although Fresh Takes believes that the approach in those states is preferred, consideration appropriately may be given to issues unique to agencies with fewer resources.

The amendment suggested above seeks to strike a fair balance between the interests of both open government advocates and public agencies.